THE CHESS Tournament

In early January, OSHA levied a $1.4 million fine against a Texas company following an employee fatality. While the size of the fine is notable (we are expecting to see more of these large fines), the cause of the fatality deserves notice.

According to the press release, in July 2009, “an employee cleaning a tank was killed in an explosion when an altered piece of equipment ignited flammable vapors inside the tank.” The investigators found that electrical equipment should not have been used inside the tank due to the presence of flammable and combustible vapors. We have seen similar issues when electrical equipment (such as radios and heat lamps) are used inside paint booths or prep stations, or near open-faced paint booths.

Since the employees were working inside a tank, it also demonstrates the importance of using confined space permits, monitoring air quality in confined spaces and making sure hot work (grinding, welding) is only done in appropriately controlled environments.

This employer had previously had two other fatalities—not at this specific facility, but others that the company owns. According to the press release: “The fatality was the third death in less than a year at this employer’s facilities; two hydrogen sulfide exposure-related deaths at a related facility, Port Arthur Chemical & Environmental Services LLC (PACES), occurred in December 2008 and April 2009.” Employers with multiple facilities can be cited for similar violations, regardless of the location.

For more information on confined spaces, handling OSHA inspections or other safety issues, please contact CHESS at 651-481-9787.

From the MPCA Small Business Enterprise publication:

Get your 2010 compliance calendar and keep proper records
Compliance calendars make it easier for you to keep proper environmental compliance records. The calendars contain recordkeeping logs for records required by federal and state rules and permits, along with pollution prevention tips.

Calendars have been tailored for the following sectors: hot mix asphalt, sand and gravel, aboveground storage tanks, dry cleaning, vehicle repair, and construction stormwater. A limited number of free paper copies are available. The calendars are also available for download here.

The Department of Labor has its own YouTube site. They have posted information about meetings held by the Department on everything from COBRA, speeches made by Secretary of Labor Solis, people with disabilities and hiring of veterans. There are also videos posted on respirators, including respirator safety and the difference between N95 particulate filtering facepieces and surgical masks.

Some of the videos are also available in Spanish.

For more information on this, respirators or other safety issues, please contact CHESS at 651-481-9787.

Daylight is getting longer everyday, and the chickadees are singing courting songs. However, winter is not over, and we will still be seeing single digit temperatures. Minnesotans have many advantages over the southern states suffering cold: most of us have mastered the penguin shuffle for walking on ice, and our cities and state are well equipped to handle ice, slippery roads, and snow. BUT, it is still important to protect yourself and your employees from the cold.

OSHA has published a “cold stress pocket card” that we like. Check it out.

Another Confined Space Problem – but not a fatality

On February 4, news providers in the Twin Cities reported the dramatic eight-hour rescue of a man in Farmington (Minnesota) trapped past his chest in a silo filled with corn. Due to the careful efforts of a number of emergency responders, the man was pulled out – safe and alive.

What’s frustrating about this story isn’t the incredible work done by the fire departments. It’s that it happened at all. Any type of bin holding loose material is a known hazard. The material can form an apparently solid crust across the top, hiding voids below. Step down onto that crust, and you’ll quickly be engulfed by the material. OSHA considers these spaces permit-required confined spaces, and mandates that anyone enter them take steps to avoid just this kind of near-tragedy.

I recently received a notice about driving classes for folks 55 years old and older.  The classes are being offered through the Minnesota Highway Safety Center:

The mission of the Minnesota Highway Safety and Research Center is to provide educational activities which prevent financial loss, human trauma and to promote the safe and efficient operation of the highway transportation system.

The 4 hour refresher class is $20 per person; the full 8 hour classes are $24 per person, which seems very reasonable.  Classes are being offered between now and mid-April at sites around the Twin Cities area.

The class schedule is here, and the class description page is here. To register call 1-888-234-1294.

Students may be eligible for insurance discounts.  Please consider sharing this information with your employees (if any are over 55).

A new year has begun and you may decide it is time to clean up and get rid of things you are not using.  You know, all those old computer components, half empty bottles that are collecting dust, etc.  Before you throw things away you must determine first if it is really waste and second if the items are regular waste, solid industrial waste, regulated waste and hazardous waste.

Waste isn’t waste if it can still be used.  Can the computer components be donated?  Can your vendor take back the half-empty containers.  Vendors will often take back partially used aerosol cans or those  with broken nozzles.  For other things that could still be used, consider posting it on the Materials Exchange list.

If you aren’t sure who will take your waste, there are two good resources:

Rethink Recycling has a “Resourceful Waste Management Guide” that provides lots of useful information on “how to recycle or dispose of items from electronics to paper to food waste.”  

Ramsey County recently updated their hazardous waste vendor list.  This lists vendors who service the Twin Cities metro area. 

For more information on classifying and handling waste, see the MPCA website or contact CHESS at 651-481-9787.

(Or, how to lose your car to the Federal Government)

Employees who file a complaint about safety with OSHA are protected under the law from retaliation.

A company in New Jersey found out the hard way.  Brocon Petroleum in New Jersey terminated an employee in retaliation after they suspected he had contacted OSHA, triggering an OSHA inspection.  Employees have the right to contact OSHA and cannot be disciplined or punished for doing so.

According to the OSHA news release, US marshals seized the car of Brocon Petroleum’s president after the company failed to pay the employee the back wages due him as determined in a consent judgement.

As noted in OSHA’s press release, detailed information on employee whistleblower rights, including fact sheets, is available on OSHA’s website here.

Employers should encourage employees to bring their safety concerns to management first.  That also means employers must listen to employees and work to address safety concerns and hazards.  For more information on this, setting up safety training, safety programs and a safety communications program, please contact CHESS.

Employment Law Changes from 2009

A CHESS Tournament guest post by Deb McGahey, HR Options

For most employers, 2009 was a busy year monitoring all of the employment law changes that were enacted throughout the year. As I started to write this article, I soon realized that I could be writing a mini novel if I tried to cover all of the nitty gritty details regarding the most important changes during 2009. Hopefully the following recap, with related links, will re-educate or remind you of changes that may need to be on the top of your HR “to do” list in 2010.

Ledbetter Fair Pay Act
Source: Society of Human Resource Management

The Act makes it easier for employees who have experienced pay discrimination to seek redress. Key provisions of the Lilly Ledbetter Fair Pay Act include:

• Changes application of statute of limitations. By making the time clock re-start each time an employee receives a paycheck, and potentially even when a retiree receives an annuity check, the Ledbetter Act will allow individuals to bring discrimination claims potentially many years after an alleged act of discrimination occurred. Employers will be liable for earlier management decisions for which there may be no records.
• Expands plaintiff field. The Ledbetter Act will allow, not just an employee who was discriminated against, but, other individuals who were “affected” by an act of pay discrimination to file claims. Thus, the new law may allow family members, including spouses and children, and potentially others to become plaintiffs in discrimination suits over an employee’s pay.
• Amends other civil rights statutes. The Ledbetter Act will extend the statute of limitations for filing claims for all protected classes of employment law, including gender, age, color, disability, race, religion and national origin.

Suggested guidelines to help support your pay practices may include the following: document and communicate your compensation philosophy; ensure proper record retention regarding performance appraisals/performance reviews; offer better oversight and review of merit increases and provide management with a structured increase process; conduct an internal audit of pay for similar positions.

MN Unemployment Insurance Updates

A number of changes have been made for consideration of benefits to former employees.

• Federal Emergency Unemployment Compensation State Extension
• Base Period Definition Change
• Reemployment Assistance Training
• Changes to Qualifications for Receiving Unemployment Insurance benefits

For details see this document from UI.

Americans with Disabilities Act (ADA)

The Americans with Disabilities Act applies to companies with 15 or more employees. The definition of what constitutes a disability changed substantially in 2009; those changes are noted in Section 12102 of regulation.

The complete act is posted here.

Family Medical Leave Act (FMLA)

Two of the major changes to the FMLA were the addition of Military Leave under FMLA and clarifying the definition of a serious health condition. There are two types of leaves under the Military Leave:

• Military Caregiver (up to 26 weeks of unpaid leave during a single 12 month period)
• Qualifying Exigency (up to 12 weeks of unpaid leave during a 12 month period) for events that may arise out of the fact that the employee’s spouse, son, daughter or parent is on active duty or has been notified of an impending call or order to active duty.

An FMLA fact sheet regarding Military Leave and all of the details of Military Caregiver and Qualifying Exigency has been made available from the department of labor wage and hour division.

Additional FMLA related documents can be found here.

Genetic Information Nondiscrimination Act (GINA)

The Genetic Information Nondiscrimination Act is designed to prohibit the improper use of genetic information in health insurance and employment. The Act prohibits group health plans and health insurers from denying coverage to a healthy individual or charging that person higher premiums based solely on a genetic predisposition to developing a disease in the future. The legislation also bars employers from using individuals’ genetic information when making hiring, firing, job placement, or promotion decisions. As an employer, you should ensure that you have the most recent law posters that include the new GINA guidelines. In addition, you should add language to your EEO policies preventing discrimination based on genetic information.

I-9

A new I-9 form and a handbook for employers were made available in August of 2009.

The Handbook for Employers includes comprehensive instructions for completing Form I-9.

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As an employer it is important to not only understand key changes that may impact your business, but to also ensure compliance by updating your handbook, policies, forms and required posters.

Deb McGahey has over 20 years of experience in Human Resources and is the founder and principal consultant for HR Options. She has helped clients with the development of handbooks, policy and procedure manuals, development of compensation structures, benefit renewals and acting as an interim head of HR. Deb can be reached at 952.240.9257.

I have recently been asked about use of exercise balls at work stations.  Exercise balls require that abdominal muscles be engaged.  They are fine for short periods of time (an hour a day, maybe), but should not be used for extended periods (so, no ball chairs).  If you get distracted and do not engage the abdominal muscles, you can lose your balance.  If you use the ball for too long your muscles will fatigue.

Another concern with them is the height issue.  They are not adjustable like a chair, so the height likely will not be appropriate for the workstation.  If the recommendation to use one comes from a physical therapist or MD they need to also address the other issues (height, trip hazard, etc.).  If the height is right for the work surface and it can easily be stored out of the way and only used for short periods of time, then the use of the exercise ball for sitting might be acceptable.  Those are a lot of ifs.

At home, most people are not required to be at their desk or computer for extended periods, as they would be at work.  That is why they are better suited for home use.